MEMBER OF COUNTY PLANNING COMMISSION WITH INTEREST IN ECOLOGICALLY SENSITIVE LAND

To:Ken Jones, County Attorney,
Lee County, Fort Myers

Prepared by: Bonnie Johnson

SUMMARY:

The word "officer" which appears following the first semicolon in s. 112.313(7) is construed to mean "public officer" as defined in s. 112.313(1). Section 112.317, the penalty section of the Code of Ethics for Public Officers and Employees, applies to the entire code, i.e., to both the financial disclosure and standards of conduct provisions. Therefore, the term "public officer" as used in the penalty section encompasses members of advisory bodies pursuant to s. 112.313(1).

The procedure to be followed in the handling of a complaint is the same, whether charges are filed against a public officer or employee, state or local, elected or appointed, advisory or nonadvisory. In all cases complaints are to be filed with the Commission on Ethics and are handled in accordance with procedures set forth in s. 112.324. Questions relative to voting requirements under s. 286.012 are not within the jurisdiction of the Ethics Commission and therefore cannot be answered by this body.

In interpreting s. 112.313(7), dealing with conflicting employment, the commission acknowledges that virtually every citizen eligible to serve on a planning board is likely to have a personal interest in real estate within the board's jurisdiction. Nevertheless, where a county planning commission member has extensive holdings in ecologically sensitive land in that county, his private interests are deemed to conflict repeatedly with or impede the fulfillment of his public duty as a planning commission member in violation of s. 112.313(7). The subject planning commission is charged with the responsibility of adopting a comprehensive land use plan for the county, the formulation of which will call for the careful weighing of developmental and ecological priorities. The subject planning commission member is the active owner of a real estate company; has substantial dealings in real estate in the county; holds power of attorney and is trustee for 2,000 acres of property on an ecologically sensitive island in the county; is involved in the development of approximately 100 acres of property on said island; and is president and chairman of the board of a land corporation devoted to purchasing and developing lands on the island. It is the view of the Commission on Ethics that, where a member of a planning commission holds such vast financial interests in properties, the values of which stand to be significantly influenced by the actions of the commission, such holdings pose a threat to the board member's impartiality in formulating a land use plan and would provide him with a motive for improper use of public position. Accordingly, a prohibited conflict of interest is found to exist where the subject person serves on the county planning commission while simultaneously holding the real estate interests of the nature and extent described above.

QUESTIONS:

1. In s. 112.313(7), F. S., as created by Ch. 75-208, Laws of Florida, is the word "officer" which appears following the first semicolon of the provision construed to mean "public officer" as defined in s. 112.313(1)?

2. Is the term "public officer" as used in s. 112.317, the penalty section of the Code of Ethics for Public Officers and Employees, construed to encompass a member of an advisory body within the specific definition of the term set forth for purposes of s. 112.313?

3. What procedure is to be followed in filing a complaint of violation of the Code of Ethics against a member of an advisory body?

4. Do the voting requirements under s. 286.012, F. S., apply to the Lee County Planning Commission and other advisory bodies?

5. Does s. 112.313(7), F. S., as created by Ch. 75-208, Laws of Florida, pertaining to conflicting employment, prohibit Mr. Alan C. Peterson from serving on the Lee County Planning Commission by virtue of the extent and nature of his real estate interests in Lee County?

Question 1 is answered in the affirmative.

Section 112.313(1) begins by stating that "[n]o public officer or employee of an agency shall have or hold any employment or contractual relationship with any business entity or any agency which is subject to the regulation of, or doing business with an agency of which he is an officer or employee . . . ." The word "officer" about which you inquire appears in the second half of this sentence immediately following the semicolon and states: "nor shall an officer or employee of an agency have or hold any employment or contractual relationship that will create a continuing or frequently recurring conflict between his private interests and the performance of his public duties or that would impede the full and faithful discharge of his public duties." (Emphasis supplied.)

In the absence of a definition of the word "officer" as distinct from the term "public officer," and failing any other logical antecedent in the provisions, it is our opinion that the word "officer" in question is construed to mean "public officer" as defined in s. 112.313(1).

Question 2 is answered in the affirmative.

Subsection (1) of s. 112.317 provides as follows:

Violation of any provision of this part, including, but not limited to, any failure to file any disclosures required by this part, or violation of any standard of conduct imposed by this part, in addition to any criminal penalty involved, pursuant to applicable constitutional and statutory procedures, shall constitute grounds for, and may be punished by one or more of the following: . . . . (Emphasis supplied.)

Section 112.317, the penalty section, applies to the entire Code of Ethics, which includes both financial disclosure and standards of conduct provisions. The penalties are separated into three categories: those applying to public officers, to employees, and to candidates. Based on the language quoted above, it is our opinion that the category of penalties designated for public officers applies both to the "state" and "local officers" enumerated in the financial disclosure law and to those "public officers," including members of advisory bodies, subject to the standards of conduct provisions of the code.

As to question 3, the procedure to be followed in the filing of a complaint is the same whether charges are brought against a public officer or employee, state or local, elected or appointed. In all cases, complaints are to be filed with the Commission on Ethics in accordance with provisions set forth in s. 112.324(1), F. S., as created by Ch. 75-199, Laws of Florida, a copy of which is enclosed. Procedures for the investigation of complaints against any employee or officer other than state legislators and impeachable officers are outlined in subsection (2) of s. 112.324. Should a finding of guilt be returned upon completion of the full and final investigation, the Ethics Commission reports its findings and recommends appropriate action pursuant to s. 112.324(4). In the case of a violation being found on the part of a member of a local advisory board, subsection (4)(c) would appear to be applicable. The Commission on Ethics would report its findings and penalty recommendation to "[t]he governing body or appointing official . . . ."

As to question 4, the jurisdiction of the Commission on Ethics is limited specifically to the Code of Ethics, part III, Ch. 112, F. S., as amended. Therefore, we are without authority to answer the above question as it pertains to a statute outside our interpretative authority.

Question 5 is answered in the affirmative.

Your letter of inquiry advises us that Mr. Peterson is a professional engineer and owner of a consulting business whose services are restricted to the engineering facets of steel mills. Whereas this employment bears little relation to his planning commission responsibilities, we are advised further that Mr. Peterson is a registered real estate broker and owner of a real estate company in which he takes an active part. In this capacity he therefore has substantial dealings in real estate within Lee County. Additionally, he holds power of attorney and is trustee for some 2,000 acres of property belonging to his parents on Pine Island, an ecologically sensitive area which comprises approximately 15.15 percent of the unincorporated land of Lee County, and is currently involved in the development of approximately 100 acres of property on Pine Island. Mr. Peterson also serves as President and Chairman of the Board of Directors of the Drivers Land Corporation (DLC), which was formed to pool moneys invested by bus drivers to purchase and develop lands on Pine Island. DLC currently owns a subdivision on Pine Island.

A memorandum dated November 12, 1975, to you from Mr. Bill Harris of the Lee County Planning and Zoning Department advises that the population of Pine Island represents approximately 17 percent of the county and, due to its unique aspects, the island is of great significance to the county's land use planning efforts. He further states that the planning department staff expects a high degree of pressure for development which will conflict with opposing pressures to maintain the island for ecological and historical reasons.

The Lee County Planning Commission is charged with the responsibility to recommend principles and policies for guiding land uses and development in the county. Of particular importance is the planning commission's duty to prepare and adopt a comprehensive land use plan to be presented to the board of county commissioners. In connection with the preparation and subsequent maintenance of this plan, the planning commission is empowered to conduct public hearings and undertake special studies for the purpose of gathering information related to land use. After a final comprehensive land use plan has been adopted by the board of county commissioners, it is the responsibility of the planning commission to recommend, from time to time, such changes in the plan as may be deemed necessary. Further, the board of county commissioners may assign to the planning commission additional duties as may be necessary to implement the comprehensive plan, such as the holding of public hearings and the making of recommendations to the county in such areas as zoning codes and maps, subdivision regulations, and codes for building construction and equipment. Lee County Ordinance 75-10, s. 3(c).

The recently revised standards of conduct provisions of the Code of Ethics for Public Officers and Employees defines the term "public officer" as follows:

As used in this section, unless the context otherwise requires, the term "public officer" shall include any person elected or appointed to hold office in any agency including any person serving on an advisory body. [Section 112.313(1), F. S., created by Ch. 75-208, Laws of Florida.]

As an appointed member of the Lee County Planning Commission, Mr. Peterson clearly is a public officer within the above-quoted definition and therefore is subject to the standards of conduct provisions of the law.

Among these provisions is a prohibition against conflicting employment or contractual relationships which states in relevant part:

No public officer or employee of an agency shall have or hold any employment or contractual relationship with any business entity or any agency which is subject to the regulation of, or doing business with an agency of which he is an officer or employee . . . ; nor shall an officer or employee of an agency have or hold any employment or contractual relationship that will create a continuing or frequently recurring conflict between his private interests and the performance of his public duties or that would impede the full and faithful discharge of his public duties. [Section 112.313(7), F. S., as created by Ch. 75-208, Laws of Florida.]

The question before us is whether Mr. Peterson's particular real estate interests repeatedly conflict with or impede the fulfillment of his public duty as a member of the planning commission and whether, as a dealer in land within the county, he is subject to the regulation of the commission. We believe that a frequently recurring conflict does exist due to the nature and extent of Mr. Peterson's interests in lands located in Lee County.

Realizing that virtually every citizen eligible to serve on a planning board is likely to have a personal interest in real estate within the board's jurisdiction, we nevertheless perceive a distinction between the average landholder and one whose livelihood derives in substantial part from land transactions. As a real estate broker, Mr. Peterson deals in the buying and selling of property on a day-to-day basis while simultaneously serving on a board whose findings and recommendations directly or indirectly affect the value of all property within the county. Also, of principal importance in any land use planning considerations is the disposition of environmentally sensitive areas, the careful weighing of ecological priorities against a region's need for expansion and development. In the instant case, however, where a planning commission member is financially involved in large tracts of ecologically sensitive land, the potential for unbiased judgment is severely threatened.

In its statement of intent in enacting a Code of Ethics, the Florida Legislature declared:

It is essential to the proper conduct and operation of government that public officials be independent and impartial; that public office not be used for private gain other than remuneration provided by law . . . . [Section 112.311(1), (1974 Supp.).]

It is our view that where a member of a planning commission holds vast financial interests in properties, the values of which stand to be significantly influenced by the actions of the planning commission, such holdings pose a threat to the board member's impartiality in formulating a land use plan and would provide him with a motive for improper use of public position. Accordingly, we find that a prohibited conflict of interest exists in Mr. Peterson's serving as a member of the Lee County Planning Commission while simultaneously holding the real estate interests described above.